The Constitution Then and Now

I have just finished a rather thorough book on the history of the ratification debates written by Pauline Maeir, titled Ratification: the People Debate the Constitution. The recurring theme throughout the debates from the Constitution’s opponents is concern that the Framers had created a centralized state that would, especially through its vast taxing powers, become corrupt and tyrannical. I have been over this to some extent in a previous post, and I once again highlight the words of the Anti-Federalist writer Brutus because it is one of the best expressions of anti-constitutional angst:

Exercised without limitation, it will introduce itself into every corner of the city and country. It [the national government] will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take the cognizance of the professional man in his office or his study; it will watch the merchant in the counting-house or in his store; it will follow the mechanic to his shop and in his work, and will haunt him in his family and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house and in the field, observe the toil of his hands and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States.

Fast forward 223 years later (or more than 100 years if you’re Ezra Klein), where we witness the Constitution being read aloud on the floor of the House of Representatives. Republicans have promised that in every proposed piece of legislation they will cite the constitutional authority for each provision – and contra what the New York Times may think, Congress, and not just the Judiciary, has the authority and ability to interpret the Constitution for itself as a body (as does the President). The reason for all this as that conservatives feel that a more filial observance of the powers – and limits to said powers – of the Constitution will reign in the federal government. In other words, we need to more faithfully interpret the Constitution if we want the federal government to become less centralized and less tyrannical.

So were the Ant-Federalists right? Reading Maier’s book, as well as any selection of the Anti-Federalist papers, one is almost tempted to label the constitution’s original critics as prophets as indeed many of their worst dreams came true. Perhaps the most prescient prediction is that the federal government would, in essence, swallow up the states as state and local governments have diminished in power and authority over the years.

It’s also worth remembering that the Constitution was intentionally designed to increase the power of the federal government. I cringe a little when conservatives claim that the Constitution was designed to limit the powers of the federal government. Well, in point of fact the Constitution was meant to improve upon the Articles of Confederation and make it easier for the federal government to act. Under the Articles of Confederation legislation required unanimous consent among the states. Further complicating matters, some states refused to furnish needed funds to keep the national government solvent. So the purpose of the Constitution was in fact to enhance federal authority.

But the story doesn’t end there. The delegated powers were few and well-defined. One of the principal Anti-Federalist arguments was that the Constitution lacked a Bill of Rights, to which the Federalists responded that the Constitution itself was a bill of rights. The people need not fear that the federal government would engage in actions that were clearly outside of its delegated authority. Eventually the first Congress would adopt a bill of rights, partially as a means to placate reluctant ratifiers.

And so now proponents of limited government turn to the Constitution in order to justify a more limited state. Are we simply wrong? Perhaps the Constitution’s grant of authority is as broad as the Anti-Federalists feared, and we are clinging to a mistaken notion of what the Constitution does and does not prohibit. I’m sure several people reading this would tend to agree with that notion. Anybody remotely familiar with my writing would not be surprised when I say that part of the crisis we face is due to a neglect of the original intent of the Constitution. The problem lies principally with a judiciary that has mis-interpreted the Constitution so overwhelmingly that they have rendered large parts of it – especially the Tenth Amendment – practically null, while expanding and twisting other elements – notably the commerce clause and 14th Amendment – to fit their needs. Personally I think the case of Wickard v. Filburn did more damage to the Constitution than any other decision other than Roe. If you’re not familiar with the case, do read the opinion of the Court as handed down by Justice Jackson, and see how the Court – unanimously – decreed that eating food that you grew on your farm somehow affected interstate commerce. Once such a tenuous connection was made between private activity and interstate commerce, the floodgates were opened, tempered only slightly by narrow Supreme Court decisions in the late 90s that did not fully reverse the reasoning behind Wickard.

At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters. I suspect that conservatives and leftists will have wildly varying opinions as to what that signifies.

16 Responses to The Constitution Then and Now

I found your final paragraph quite poignant, and I, too, have wondered about that shift. As someone who is very sympathetic with versions of democratic liberalism, I am a strong advocate of limited government and, more specifically, wish to preserve the integrity of the Constitution. Yet I do not sympathize with many who are, as you say, today’s “most vocal supporters” of the Constitution. I think some of the disagreement runs much deeper than a dispute over whether government should be limited. It runs down to what exactly should set the normative standards of limitation. Is it a single right? A set of rights? Is it the nature of free and rational humans beings? Is it human well-being and participation in objective goods? I look forward to continuing to discuss these questions with you and others here on the blog.

As for the book, I asked for it (but, alas, did not receive it) for Christmas. You’ve got me motivated to just go out and purchase myself. What did you think of it?

I enjoyed the book, though it does get somewhat repetitive, and focuses a lot on two conventions: Virginia and New York. Then again, those were probably the most contentious debates and the ones with the best records of the debates. It provides an excellent background into the maneuverings behind ratification, and frankly the Federalists come off as looking a little shady in certain states in finagling ratification.

It’s also more of a narrative history – it’s not like a Forrest McDonald book that penetrates very deeply into the theoretical arguments. Maier just lays out the debates that took place, state by state, and how everything unfolded. As someone who has read a lot about this particular era, I have to say even I made some new discoveries. I definitely recommend it.

One could be of the view that the Articles of Confederation were useless and believe that the federal government should have more power than it had thereunder, but still be a proponent of limited government.

Jefferson was a proponent of limited government, but wasn’t among the Anti-Federalists who objected to the Constitution. In fact, he supported the Constitution, albeit rather reluctantly unless it contained a Bill of Rights. The “Father of the Consitution”, James Madison, was, like his mentor Jefferson, also a proponent of limited government. (They both, however, seemed to be rather fond of the war powers of the presidency, at least as long as they were the ones wielding them.)

So, I’m not sure your final paragraph is quite accurate in proclaiming that “that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters”.

“At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters.”

Of course it was a fairly early transformation. The Democrats from the time of Jackson tended to strictly construe the Constitution, certainly as it applied to expenditures of funds for internal improvements funded by the Federal government. The Whigs and then the Republicans were for a looser interpretation to allow for internal improvements. Since that time proponents for the expansion of the power of the Federal government have tended to be in favor of a broad, or fanciful, interpretation of the constitution, while opponents of expanded powers of the Feds have taken a strict, or narrow, interpretation of the Constitution. Since the time of the New Deal Democrats have tended to stump for what they call a living Constitution and Republicans have found virtue in attempting to stay as close to the intent of the Founding Fathers as they can. It is easy to point to examples which indicate hypocrisy on both sides, but the broad categories are basically accurate descriptions for both sides most of the time.

The basic problem of course is an out of control Federal judiciary that has taken a fairly straight forward document and de facto “amended” it thousands of times, and pays far more deference to what courts have written about the Constitution than the actual text of the Constitution. Our Federal Scribes and Pharisees in black robes have followed a well worn path of any group paid to interpret a document and who exercise power in the name of that document: over time their glosses and decisions obscure the meaning of that document and tend to benefit the power of those interpreting the document.

“Personally I think the case of Wickard v. Filburn did more damage to the Constitution than any other decision other than Roe. ”

The first time I read it, I thought to myself, “this justifies a command economy.”

“At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters. ”

Why amusing? A lot changes in over 200 years, and we have to take relativity into account: compared to what the social democrats in the Democratic Party have established, and would establish further if unchecked, the government established by the US Constitution IS a limited government.

I agree that it would be useful for small-government conservatives to take the anti-Federalist case to heart, precisely for the reason you mentioned and everyone ought to know: that we would not have our Bill of Rights without their intervention. In another thread I posted Jefferson’s repeal of the Alien and Sedition Acts which I think articulates a vision of limited government that is neither “anti-federalist” in the strict sense of the word, nor does it praise expanding government as today’s social engineers would have it.

I love the work Thomas Woods has done on the nullification issue, and I’m glad that he and others are restoring legitimacy to this much maligned and misunderstood principle. I think it is through a reassertion of 10th amendment rights that the power of the federal government can be curtailed.

Looking back, I probably should have re-worded that last paragraph. First of all, the phrase “limited government” is itself vague. Also, the Anti-Federalists weren’t uniform in their opinions, and some of them opposed the Constitution because it wasn’t active enough.

Maybe a better way to put it is to observe how views of the Constitution have changed among those most apprehensive about the national government, with justification as you all have pointed out.

That is one of my favorite anti-Federalist quotes – from Brutus #6, I believe. You edited the last sentence of that paragraph, which states, “To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!”

I tend to agree with you that Wickard v. Filburn was and is an extremely damaging precedent, allowing interference with local and personal decision making in a brutal way. We might also note that the legislation not overturned by WvF was itself an example of poor constitutional reasoning, so the executive and the legislative share much to blame there.

I submit that the interpretation of the commerce clause which allowed government to regulate anything which MIGHT get into interstate commerce or MIGHT affect it in some way, combined with the expansive de facto interpretation of the general welfare clause taken by Congress and the courts has, in no small part, gotten us to where we are today.

An excellent and thought provoking piece. I hope to read book soon.
It is possible that those who insisted on a Bill of Rights as an express limit on Federal power may have outwitted themselves. Consider that it is through the incorporation doctrine whereby provisions of the Bill of Rights, originally forseen as a limit on Federal action, are applied to actions of individual states and localities through the language of the 14th amendment, that so much Federal judicial overreaching has occured; from restrictions on school prayer, to lawsuits over nativity scenes, to Roe v Wade. There would have been no basis to intervene in these areas at least not by Federal judical fiat where there not a Bill of Rights to be misused and misapplied in the first place; whatever else to the good that one might want to say about it.

I am not sure it was entirely intended to be limits on Federal power alone. While that holds true in some cases (“Congress shall make no law”), in others it seems that the states are implicated.

For instance, the Federal criminal law was fairly nonexistent for much of the early union, yet you have:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury” and “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”

and

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

The Constitution is an old fiddle on which you can play any tune. Endlessly interpreted and re-interpreted, according to the shifting whims of the times and the prejudices of 9 flawed human beings, the document starts out with a magnificent preamble and then descends into much ambiguity and legal mumbo-jumbo that provides much grist but little clarity on the Law of the Land.

Right off, the First and Second Amendments, i.e., outlining “freedoms” of speech and the right to bear arms, defy clear understanding and universal agreement and have caused arguments for 200+ years that continue to this day and will never be resolved as long as lawyers, justices and academics continue to parse every word for their “intended” meaning only to fall short time and again. Say, where’s the comma in that clause, is it parenthetical or dependent, and so on, ad nauseum.

Cue the patriotic music while we hear the majestic words uttered with all due sanctity and solemnity in the “people’s House,” as tears well up in the eyes of the Speaker.

Next up: reading of the Federalist Papers, to be followed by assorted selections of wise musings of the on-board Framers, leaving out Tom Paine or any other dissenter who might rock the Ship of State. Give me Jimmy Stewart, as Jefferson Smith, winging it on the floor instead. At least it’s entertaining.

Conveniently ignore antislavery crusader William Lloyd Garrison’s assessment of the 1787 Constitution as “a covenant with death and an agreement with hell.” Forget the sins of slavery, wrought by the Founders, and Dred Scott, and the 120-year delay in granting full rights to half the human race.

Let’s jump the the Fourth Amendment — which allegedly guards against unreasonable searches and seizure, or an inherent right to privacy by all citizens, now flouted at every airport, road block or public gathering place where citizens must prove they are not criminals.

Several volumes await on “due process,” mentioned in the 5th, 6th, 14th, all wide open to whatever and whoever and whenever.

Yada, yada, yada.

Thanks, Paul, for playing some new tunes I hadn’t heard before. Always love to hear variations on a theme to keep from nodding off.

Jonathan, perhaps a Constitutional law expert could weigh in but my underanding is clearly that until passage of the 14th amendment, the Bill of Rights was viewed as a limit on federal not state actions. It was only through application of the 14th amendment for example that things such as Miranda warnings became binding on state and local police, not just federal law enforcement, or the principal of excluding illegally obtained evidence became binding in state and not just federal prosecutions. Likewise Federal Court decisions on matters involving local school boards or state laws governing abortion would have been unthinkable to the founders, and only crept into our law through application of the incorporation doctrine applying the protections of the Bill or Rights to state and local action via construction of language of the 14th amendment. Perhaps some learrned Constitutional Law scholar can illuminate further.

While most incorporation doctrine cases appeared in the late 1890s, textually, there is an inconsistency between the “Congress shall make no law,” included in the first amendment, and others where there is no specific limitation.

A good place to turn prior to that time seems to me to be Justice Story’s Commentaries – http://www.constitution.org/js/js_344.htm, which appeared in 1833, and predates the series of incorporation cases. Story notes that, in regards to freedom of the press, “It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation.”

And again, in regards to the right to bear arms, Story notes: “The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

It seems difficult to believe, and Story does not mention the Federal government in either place (as he does in other places) that such rights could expressed for every man, yet have every state restrict the press severely or deny the right to bear arms, and not have these amendments be meaningless.

I do think, however, that the Bill of Rights has been over-incorporated, and that a more careful jurisprudence would have incorporated some of the amendments, and not others.

We might also note that the legislation not overturned by WvF was itself an example of poor constitutional reasoning, so the executive and the legislative share much to blame there.

Good point. I meant to emphasize that each branch of government has been complicit in all of these developments. In fact in the 90s cases I alluded to – US v. Lopez and another which suddenly escapes me – the Courts acted as a corrective on an over-reaching Congress.

As for the Bill of Rights, that’s something worth untangling. One thing to keep in mind is that our view of the first ten amendments as something like a unified whole is a somewhat modern interpretation, a point which Maier helpfully makes. It just so happens that there were exactly ten at first, a convenient number that calls to mind the Ten Commandments. But they were not necessarily intended to be taken as a collective whole.

First of all, there were twelve amendments originally penned by Madison during the First Congress, ten of which (after modification) were soon ratified. Another amendment wasn’t ratified until the late 20th century – the 27th Amendment, which concerns itself with Congressional pay raises. There was another amendment – not ratified – that dealt with representation, and which will also be the subject of my next post.

It’s also worth keeping in mind that the entire amendment process was a result of developments from the ratifying conventions, and again Maier goes into great detail on this. After the first few states ratified, many of the later ratifying states approved the Constitution but also offered various recommendations for ratification – and there was another side debate in the anti-constitutional camp as many constitutional opponents wanted to offer only conditional ratification, but that’s another subject. There were a whole slew of proposed amendments, some contradicting the others. Finally 12 were penned, ten (and then eleven, but only after 200 years) were adopted.

So I don’t think we should look at the first ten amendments as a collective. When it comes to the first amendment, the language couldn’t be clearer that it applies only to the federal government. However, it is certainly reasonable to interpret the rest as applying generally to the states.

One possibilty is that the states already had such protections in their state constitutions, and therefore the federal one just addressed fed limits. But I don’t know if that was the case. If not, then it seems your argument would be pretty strong.

“At any rate, I find it mildly amusing that proponents of limited government have transformed from the most virulent opponents of the Constitution to its most vocal supporters.”

It’s not a shift at all. The worst-case scenario in the minds of the opponents of the Constitution was nothing compared to the reality of 1937 (or maybe even 1863). Let’s chart it out this way:

Weak—a–b————-c———d–e–f—-Strong

A is the limited-government position around ratification, B is the expansive government position of the same era. We breezed past C in maybe the Progressive Era. Now we’re at E, and the two parties represent D and F.

The debate still stands as to whether there’s anything in the Constitution that prevents govenment from drifting stronger (rightward in my chart). But let’s not pretend that anyone is going to debate the Constitutionality of the food stamp program.

Likewise, I don’t think it’s fair to say that the Constitution was intended to expand federal power. Sure it was, but on a completely different order of magnitude than we have today.

“It’s also worth remembering that the Constitution was intentionally designed to increase the power of the federal government. I cringe a little when conservatives claim that the Constitution was designed to limit the powers of the federal government. Well, in point of fact the Constitution was meant to improve upon the Articles of Confederation and make it easier for the federal government to act.”

I am no constitutional scholar for certain, but what I remember from some articles on the Constitution’s framing, the Founders desired to build a limited government that could function, and the Articles of Confederation were simply too anarchical to allow the central government to operate effectively. A limited government that cannot act is no government at all. Advocating today for the Constitution our Founders left us is not a contradiction of limited government, but instead an embracing of it. The U.S. finds itself in the position of having a government that falls on the spectrum between the deficiency of anarchy and excess of tyranny someplace between the middle and tyranny. When the Constitution was being written, the government was between the middle and anarchy. This difference in perspective is significant.

If we want to address the question of “right-sizing” government, I think there are two aspects to consider: form and virtue. With regards to FORM, authentic governance would be placed at the half-way point on the spectrum of forms tyranny and anarchy. With regards to VIRUE, and what all Americans seem to have no cognizance of, is that the integrity of government is built upon the integrity of the people inhabiting office. Likewise, the integrity of the office holders is dependent upon those who put them in office. This would apply to hereditary Monarchy as much as our constitutional Republic with democratic representation. It is true that there are forms of “government” that are intrinsically evil. What is also true is that good government is based more on the virtue of the members of society than it is on governmental forms.

The danger we face now, and the deep irony is that, living in a country based on a constitution framed to protect faith and morals in temporal living (no matter the inherent flaws of it due to because of its conception in Protestant Rationalism) is seeing men use that same Constitution to erect a nation of faithlessness and immorality enforced by the very branches of government tasked to prevent such a thing from coming to pass. The need for faith and morals is so fundamental because, although God is King and Lord over all the Earth, He has given the governance of ourselves over to us – no matter the form – and we can only execute it to His glory and our good if we adhere to His Faith and Morals. What a fearful responsibility to lay upon such frail and flawed creatures! True governance can only be a gift from God.